The Impending $#%!!-storm
I've mused about indecency and obscenity in the broadcast arena before... whether warranted or not (in the minds of the few and proud commenters in this space). Things are getting out of control again, however, which leads me to pipe up.
1. Just this weekend, Fox Sports stepped into the continuing mess with its strategic decision to show a woman at the Superdome wearing a homemade t-shirt with the slogan "**ck Da Eagles." Some tried to argue that the shirt said "Pluck Da Eagles," but Fox has now admitted its error. Poor timing, gang, especially since it wasn't a live reaction shot (by your admission) ...
2. WFMU's Liz Berg recently attended oral arguments at the Second Circuit Court of Appeals in New York City, in which Fox apparently made a strong challenge to the inane FCC policies currently in place. I appreciate Liz' reveling in the judges' eagerness to use the word that, according to the FCC's infamous "Golden Globes" ruling, "invariably calls to mind a coarse sexual image." I can't say that I ever expected Nicole Richie to be a champion of First Amendment principles, but bad law is often made on bad facts -- and the history of broadcast indecency is a continuous string of bad facts, starting with the original complainant in the Pacifica case over 30 years ago. I would also be remiss if I didn't point everyone back to the analysis of the last round of absurd FCC rulings by WFMU's broadcasting counsel and a fine scholarly paper on the F-word that I have finally downloaded and will read.
3. In the Dec. 22 edition of "Fierce Mobile Content," Jason Ankeny (better known to some of us as a former indie-music contributor to AllMusicGuide.com) offered a slightly different take on broadcast indecency and the "most important player" in that space.
Instead of analyzing the year that was or forecasting the year that will soon be, let's stay in the here and now to talk about a man whose every action seems to shake the foundations of popular culture as we know it. A man instrumental in shepherding that culture into its darkest age -- and who now carries the torch of freedom lighting our way out of the shadows. A man who still found time to date Britney Spears in all her pre-Federline glory. That man, of course, is Justin Timberlake -- pop idol, teen pin-up and herald of a new era in digital content. Hear me out.
First let's go back to February 2, 2004, and Janet Jackson's notorious Super Bowl halftime wardrobe malfunction ... the event set in motion an FCC crackdown on broadcast decency standards that also continues to this day, severely limiting the creative latitude of terrestrial television and radio content. And whom do we have to blame for all this? Jackson's duet partner Justin Timberlake, who ripped the costume from the R&B diva's chest in the first place.
Fast-forward to December 16, 2006. Timberlake is now a guest star on NBC's long-running sketch comedy series "Saturday Night Live," and appears alongside cast regular Andy Samberg in a three-minute digital film spotlighting an unbelievably raunchy holiday song performed by a fictional pop singing duo. NBC censors bleeped an offending word in the song's chorus no fewer than 16 times, but almost immediately after the network broadcast concluded, NBC posted an uncensored version ... on its NBC.com website as well as on video aggregator site YouTube. In doing so, "SNL" became the first scripted network comedy to employ the Internet as a means of circumventing the FCC, which maintains no jurisdiction over online content, further cementing the web as a safe haven for creative thought and expression. And once again, there was Timberlake at the center of it all, pointing the way out of the mess he created almost three years earlier.
The Timberlake connection is cute, even if the Bono/Golden Globes incident came first and has had a greater legal impact to date. More importantly, however, I worry that the end game of NBC's maneuver will be FCC regulation of the Internet.
First, the original SNL "Special Gift" broadcast is very likely to draw fire from the usual suspects (Tony Perkins, James Dobson, etc.) on a contention that the broadcast was "profane" under Golden Globes and therefore not subject to a safe harbor. The Commission has already told us (in Golden Globes and then the trifecta last spring) that bleeping an objectionable word does not cure otherwise inappropriate content that is clear from the context. As a "special gift" for NBC, recall that profane content may not enjoy the safe harbor for indecent content.
Second, I fully expect to see a challenge to FCC license renewal for some NBC owned-and-operated station, on the grounds that the license-holder actively circumvented FCC regulations (by shunting profane content to the internet) and failed to live up to its obligation of "serving the public interest." Complaints against network affiliates would be far less effective, since the affiliates don't control the NBC website where "Special Gift" is now available. (The text "oando" is pretty clear in the previous URL, a link currently found on the website of the owned-and-operated station in Washington, DC.)
The Commission is already taking baby steps toward regulatory authority, first with its CALEA regulations (assisting law enforcement in tapping wires and fiber) and now with expanding the Universal Service Fund to include interconnected VoIP service, both as contributors to the fund [PDF] and as eligible recipients of fund dollars (at least through the Schools and Libraries "E-Rate" program -- see this year's "eligibility list" [pdf]).
A renewal challenge to an NBC station, however, would be the end of the beginning -- of the end of the net as we know it. Given the nature of unintended consequences (and their volume in the FCC regulatory universe), that's a scenario we should all be working (and wishing, and hoping, and praying) against.
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